Home > Sacramento Bee: The AIDS crisis is over. Why are people still going to jail over HIV?

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April 25, 2017

By Erika D. Smith

I’m not in the habit of quoting Ronald Reagan. But on Monday, as legislation that would greatly reduce the criminal penalties for transmitting HIV moved one step closer to a vote in the California Senate, I couldn’t help but think of words penned by the former president.

The year was 1990 and my teacher handed out a Washington Post article for the class to read.

“We owe it to Ryan to make sure that the fear and ignorance that chased him from his home and his school will be eliminated,” Reagan wrote[2]. “We owe it to Ryan to open our hearts and our minds to those with AIDS. We owe it to Ryan to be compassionate, caring and tolerant toward those with AIDS, their families and friends.”

He was reacting to the death of Ryan White[3], a blond-haired boy from the Midwest who had contracted HIV during a blood transfusion for hemophilia and was diagnosed with AIDS. White wasn’t like the then-mysterious gay men in California and New York, or even the IV drug users in inner cities, who had been falling ill and dying by the thousands. He was an “innocent” victim.

At 13 years old, he got thrust into the national spotlight[4] because he wanted to go to school with his friends. But because it was the height of the AIDS epidemic, an era when fear and willful ignorance regularly trumped facts, the school district fought his family at every turn.

As a 13-year-old girl in a Midwestern suburb, I identified with him.

Over time, that vague fear of AIDS that I once had has been replaced with an understanding that HIV is a chronic illness that can be easily managed with medication. It’s no longer a death sentence. [5]What’s more, it’s highly unlikely that someone with an undetectable level of HIV in his or her blood, which is pretty common these days for undergoing treatment, will transmit the virus to anyone else.

But in California and more than 30 other states, dozens of laws remain on the books to punish people who willfully expose others to the virus. To this day, people still get charged with felonies over HIV and go to prison[7] for five, 10 or even 20 years. In some states, those convicted must register as a sex offender for life.

These laws aren’t “compassionate,” “caring” or “tolerant” toward people with HIV or AIDS. They’re fear-based holdovers from the days of the “gay plague,”[8] which in many ways, the Reagan administration callously let happen by ignoring the disease and its victims for far too long. Back in the 1980s, Reagan wasn’t “compassionate,” “caring” or “tolerant.”

San Francisco was ground zero, with three times as many AIDS cases per capita as New York and 10 times as many as Los Angeles. At one point, about half of San Francisco’s gay men were infected and most expected to die within 10 years. I’ve heard horror stories from gay men with gray hair, many of them tearing up just thinking about all the friends and partners they lost.

So it’s telling that it’s a gay man from San Francisco, Sen. Scott Wiener, who is pushing the bill that would greatly reduce the penalties for transmitting HIV.

Where California now has four felony offenses on the books for people who deliberately pass along the virus, Senate Bill 239[9] would repeal two of them and reduce two others to a misdemeanor, just like the intentional transmission of every other infectious or communicable disease.

The bill advanced out of the Senate Appropriations Committee on Monday and Wiener hopes to get it to the Senate floor by May or June.

So far, only the California Right to Life Committee has come out in opposition. Meanwhile, the list of groups in support is long, from the California Medical Association to Equality California to the ACLU.

Their reasoning is pretty plain. One is that threatening to punish people for transmitting HIV does absolutely nothing for public health. It only encourages people to hide their status or not get tested at all. You can’t be charged with infecting someone with something you didn’t know you had.

Another reason is that research shows that the laws are applied unfairly. White men, for example, make up 40 percent of the people diagnosed with HIV in California, but only 16 percent of the individuals who’ve had contact with law enforcement over it, according to the Williams Institute at UCLA.

Meanwhile, black women make up only 4 percent of the Californians diagnosed with HIV, but account for 21 percent of people who have gotten in trouble for it. A good number of them are sex workers, turning a potential misdemeanor prostitution charge into a felony.

Only about 1,260 people were accused of an HIV-related crime in California between 1988 and 2014. Of those who were convicted, 85 percent were sent to prison.

So far, only Iowa[10] and Colorado[11] have acted to repeal their laws. If California is next, it could potentially accelerate a fledgling national trend toward decriminalization.

There’s little hope of accomplishing change at the federal level, even though public health officials have been pushing for it for years. In Congress, Reps. Barbara Lee, D-Oakland, and Ileana Ros-Lehtinen, R-Fla., introduced the Repeal HIV Discrimination Act[12], but it’s likely to go nowhere. There has been resistance, particularly among Republicans.

Like the Reagan administration, red state lawmakers started paying attention to AIDS because of Ryan White, a boy unfairly marginalized by people who didn’t understand HIV or how it is contracted. Following an early provision in the Ryan White Comprehensive AIDS Resources Emergency Act, which provided funding for education and treatment, they passed misguided laws to prosecute people over HIV or AIDS.

California just beat middle America to the punch.

Now the remnants of those laws are being used to marginalize a whole new group of people with HIV, many of them opioid addicts in red states spreading the virus through dirty needles. It’s time to be “compassionate,” “caring” or “tolerant.” It’s time to end the cycle.